Warth v. Kastriner

120 A.D. 480, 104 N.Y.S. 1056, 1907 N.Y. App. Div. LEXIS 1223

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1907
• Status: Published

Opinion

Gaynor, J.:

The written agreements pleaded were never signed, by the defendants. They were sent to them by the other party, the plaintiffs predecessor, and retained by. them, and the learned trial judge allowed evidence for the plaintiff to the effect that they orally assented to their- -provisions. This was error, for the contract they contained was one which by its terms was to continue until the termination of the patents, and at the time of the making thereof there were seventeen of the- patents which still had from one to thirteen years to run, the life of a patent being seventeen years., The statute of frauds makes void every agreement not in writing and signed by the party to be- charged therewith — i. .6., sought to be charged therewith — and which “ by its terms is not to be performed xvithin one year from the making thereof.” . This statute created a rule of. evidence. It renders oral evidence incompetent to prove in whole or .in part a contract which' must be proved by á writing, and the objection to such evidence for iiicompetency was good.. The motion to direct a verdict for the defendant should have.been granted.

The judgment and order should be reversed. - - '

Jenks, Hookee, Rich and Miller, JJ., concurred.

Judgment and order reversed and. new "trial granted, costs to abide the event.